Public Bill Committee

[Mr. Joe Benton in the Chair]
E45 Equality Commission for Northern Ireland
E46 Public Interest Research Unit

Clause 6

Disability

Evan Harris: I beg to move amendment 114, in clause 6, page 5, line 4, leave out and long-term.

An amendment to remove the requirement for a disability to be long-term before a person with that disability is afforded protection from discrimination.

Joe Benton: With this it will be convenient to discuss the following: amendment 179, in schedule 1, page 144, line 10, at end insert the effect.

To clarify the meaning of the sub-paragraph.
Amendment 186, in schedule 1, page 144, line 11, leave out it.
Amendment 187, in schedule 1, page 144, line 12, leave out it.
Amendment 188, in schedule 1, page 144, line 13, leave out it.
Amendment 180, in schedule 1, page 144, line 16, leave out effect is likely to recur and insert
impairment is of a nature where it, or its effects, is liable to recur.

Evan Harris: It is a pleasure to welcome you back to the Chair, Mr. Benton.
I want to speak briefly to the amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. The group has three separate components, the lead amendment being amendment 114, which would take out reference to long-term when defining an impairment. I shall explain the reasoning.
The other amendments in the group, specifically amendments 179 and 186 to 188, would clarify whether there is an ambiguity in the Billa minor point, on which I do not intend to spend long. Amendment 180 is a more detailed attempt to get at the same issue as amendment 114, questioning whether there is a way to define an impairment so that we capture those that, while not being long term in themselves, are likely to recur. I do not claim great faith in the wording of amendment 180 as appropriate to that aim, but that is the intention.
A long-standing concern of the disabled community, and among those of us who support equality, has been the need to ensure that all the people who need to benefit from the protection provided by existing anti-discrimination law and what is proposed can benefit without matters of definition preventing them from doing so. The concern about the use of long-term and how it is described in schedule 1 is that that might prevent those peopleI am quoting the Equality and Human Rights Commission briefing on the amendment
with short-term conditions, particularly mental health conditions such as depression
from benefiting from the protection.
Long-term is defined in schedule 1:
The effect of an impairment is long-term if... it has lasted for at least 12 months... is likely to last for at least 12 months, or... is likely to last for the rest of the life of the person affected.
The concern, therefore, is with chronic but fluctuating conditions in which the effect cannot be seen to last continuously for 12 months, but is liable to recur.
The Equality and Human Rights Commission welcomes the removal of the list of normal, day-to-day activities from the definition of disability in the Bill, but it is concerned that the clause repeats the requirement for the effects of the impairment to be long term.

Vera Baird: I want to ask the hon. Gentleman about something he said a minute agothat the definition is inadequate for conditions that will not last 12 months but are likely to recur. Of course he knows that paragraph 2(1) of schedule 1 specifically provides that if an impairment stops having a substantial adverse effect on someones ability to carry out day-to-day activities, it is to be treated as none the less continuing to have that effect if it is likely to recur. That covers precisely what he was talking about.

Evan Harris: I am grateful to the Minister, because that is the meat of the issue. I tabled amendment 114, which would take out long-term and consequently render that part of schedule 1 ineffective, but amendment 180 probes the question of likely to recur. That is perhaps where we can have most of the substantive debate on the group.
Amendment 180 uses the words
leave out effect is likely to recur and insert impairment is of a nature where it, or its effects, is liable to recur.
The problem with likely to recur is that one is not certain whether ones particular condition, which is liable to recur, is likely to recur.

Vera Baird: I looked at how the hon. Gentleman changed likely to liable and checked in the dictionary, but they are synonymous. I was surprised, because I thought liable was less than likely, but they are synonymous, so I do not think he has a point.

Evan Harris: Two dictionaries, three definitions. However, I accept the key point behind what the Minister says. If it is her intention to say that likely is not a balance of probabilities but a liability to recurI can go into examples, although I am not keen to get bogged down in themthat would be helpful and enable us to go away and consider whether what she said by means of clarification would be useful not only for the courts, but for people to know their rights. There is a difference, however, and I am seeking to identify a lower threshold than likely, which at least implies a balance of probabilities.
Many conditions can and are liable to recur, but they may not recur on the balance of probabilities. The fact that they are liable to recur, but there is uncertainty, is part of the effect that they have on someone. People often have to make life-changing decisions and adjustments to their lifestyle and day-to-day activities because of the fear of something returning.
I look forward to hearing a precise definition of likely from the Minister. A common understanding is that liable to recur is not as strong as likely. However, if her view is that liable is as strong as likely, we might need to find new wording, such as has the potential to recur. For example, depression is a condition that can recur and doctors might not be able to say likely to recur when an employer or potential complainant asks the question. Part of the point of treatment, even for conditions that can recur, is the hope that they are treated.
Finally, there is ambiguity about what the it refers to in schedule 1(2)(1) because it says:
The effect of an impairment is long-term if
(a) it has lasted for at least 12 months.
We ought to have clarity on whether the it is the impairment or the effect. I have argued that it is the effect and my amendment addresses that. I do not claim to have absolutely certainty that it would be useful to clarify that, but it seemed to me that it would.
I do not think there is much more to say except that there is widespread support for doing something about the threshold that is felt to be there by the disability community on the question of long-term and the definition provided. It is noteworthy that the EHRC is even supportive of what might be considered the strongest amendment in the group, which would remove long-term entirely. It is important that there is clarity and confidence that people can access the protection. All members of the Committee will recognise that disabled people need and deserve that.

Mark Harper: I am pleased to welcome you back to the Chair, Mr. Benton. I want to speak to the amendments briefly. The hon. Gentleman raises an important issue about fluctuating conditions. I have tabled an amendment to schedule 1, looking at one issue in particular, where we can have a more useful discussion. We had good evidence in the evidence sessions and Ruth Scott of the Disability Charities Consortium raised the issue about fluctuating conditions, particularly depression, which we will discuss in relation to schedule 1. She also pointed out that removing long-term probably was not the way to go because, for example, long-term features in the UN convention.
The issue of fluctuating conditions really needs to be addressed. The Minister has already raised that and said that schedule 1 deals with it adequately. We will come to that. Although the hon. Member for Oxford, West and Abingdon has raised an important and valid issue, I do not think his amendments are the way to go about solving the problem. I look forward with great interest to what the Minister has to say.

Tim Boswell: Briefly, it is right to flag up the concerns of the hon. Member for Oxford, West and Abingdon, which will exercise many across the Committee.
Two aspects of the matter also occur to me, and are relevant to the provision of services by a public authority generally. One is that while the hon. Gentleman is entirely right to say that long-term and fluctuating conditions are, by themselves, the main remit of the measure, people may have short-term disabilities that may be finite and discretethey might arise, for example, from an accident at workbut are, nevertheless, real.
I messed my shoulder up some years agohardly a matter of interest to the Committee, but one of record. It is quite difficult to be a Member of Parliament and to find that one cannot drive, or do anything else, for a period. It gives one, perhaps providentially, some insight into the problems of people who have a long-term disability that is then forgotten about. We should consider that, because I hope that local authorities and others will.
Secondly, there are issues, for example, about how people are handled in relation to parking, where they need help and where, once again, although their condition may not be long-term, their need is nevertheless real. I hope that as we build up policy on this and some related issues on human rights, which I may wish to deploy before the Committee later, we give this matter sympathetic consideration and try to find a better way to deal with it than has sometimes been the case in the past.

Vera Baird: Welcome back to the Committee, Mr. Benton. I agree with the hon. Member for Forest of Dean that we have a better amendment than this to deal with the question of likely to recur and, in particular, the question of depression, which is the meat of where any perceived difficulty arises. The hon. Member for Oxford, West and Abingdon says that there is long-term concern about this, which would be likely, assuming that he represented the disability sector, but we have talked and consulted extensively with it about this and he is overstating the issue. He has missed it, anyway, with the amendments.
I looked up likely and liable in the Shorter Oxford. I can do no better than that, and if he wants to include redefinitions in the Evan Harris English Dictionary, that is absolutely fine. However, we will go with the normal meaning of those words. There has to be a line drawn somewhere and we think that 12 months is not unreasonable. Of course, the hon. Member for Daventry is right: people have to be considerate of those who have hurt themselvesthey have their human rights in any event, if I can put it like that, although that is an odd phrase to use about human rightsbut he clearly would not have expected reasonable adjustments to be made by his employer because he had a sore shoulder for a short time. That is the scale of what we are trying to balanceinterests of that kind.
The 12-month requirement has applied since the introduction of the Disability Discrimination Act 1995 and we do not think that there is any real need to change it. Some of the amendments are consequential on the first, so let me consider amendment 180 as quickly as I may, which is a quest to clarify paragraph 2(1) of schedule 1. To make sense of that paragraph, the question is whether it is the effect or the impairment that has to be long-term or likely to recur. It is perfectly plain that the paragraph says:
The effect of an impairment is long-term if
and goes on to say how it becomes long term. The amendment is therefore not needed because the sense of the schedule is entirely clear.

Evan Harris: I note the Ministers view that the meaning of the schedule is clear. That will no doubt be considered here and in another place. On the question of the views of the disability community, it depends who one speaks to. The Disability Rights Commission was charged with monitoring and reviewing the definition and when it conducted its research for its review of the DDA in 2002, it concluded that the long-term requirement, if I can call it that, was
a persistent problem for people with depression and anxiety disorders.
I do not claim to speak on behalf of disabled people or the non-governmental organisation community, but I hope that the Minister accepts that there is concern out there. That is why even the organisation that has taken on the work of the Disability Rights Commission, the EHRC, has concerns about the use of long term and supports the lead amendment.
I am not convinced that the Ministers reference to the Shorter Oxford English Dictionary, fine tome as it is, is sufficient fully to deal with the issue behind amendment 180. The amendment speaks of the impairment being
of a nature where it, or its effects, are liable to recur,
and is not a direct substitution of
the effect is likely to recur
with the effect is liable to recur.
However, it is clear that the Minister has set her mind against accepting any of the amendments and against recognising that there is even a problem. As the hon. Member for Forest of Dean said, we may go on to probe that issue further in the next group of amendments. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Harper: I beg to move amendment 166, in clause 6, page 5, line 19, at end insert
(4A) Where reference is made in this Act to a person (B) who is perceived to have a disability, the reference is taken to apply to this person whether or not the perceived impairment has a substantial and long-term adverse effect on Bs ability to carry out normal day-to-day activities..

Joe Benton: With this it will be convenient to discuss the following: amendment 168, in clause 13, page 9, line 15, at end insert
(3A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability..
Amendment 169, in clause 18, page 13, line 14, at end insert
(2A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability..
Amendment 175, in clause 24, page 18, line 3, at end add
(6) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability..

Mark Harper: The amendments have been discussed with the Disability Charities Consortium and are supported by that organisation and the EHRC. They would provide an explicit definition of persons who are perceived to be disabled so that people experiencing discrimination on the grounds of a perceived disability would enjoy effective protection under the law. I want to probe the Minister on the four clauses that would be amended to find out whether the Government believe that the difference between direct discrimination of those who actually have a disability and those who are perceived to have one are covered by the existing wording of the Bill.
The Bills wording is wide enough to cover direct discrimination and harassment based on perception. However, in the view of the DCC and the EHRC, the approach is not sufficient in the case of disability. That is partly linked to the issue that we have just considered in the previous group of amendments. Unlike other protected characteristics, for a person to be considered disabled for the purposes of claiming disability discrimination, they must meet the stringent definition of disability, including its long-term nature. The person who is discriminating against them, based on the perception of whether they are disabled, clearly will not have in their mind a specific legal definition of disability. The reason behind the amendments is to make clear that for cases that involve discrimination based on perception of disability, it is the defendants motivation for discrimination that matters, not whether the claimant meets the legal definition of disability. In the United States, the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act.
Given the stigma surrounding a large number of disabilities, especially hidden ones such as mental health problems and HIV, discrimination based on perception may well be widespread. We tabled the amendments to probe whether the Minister feels that the Bill already covers the matter and, if so, so that she can give the Committee an explanation. The view of the DCC and the EHRC is that it does not. The EHRC has specifically said that it does not think, on a normal reading of the clauses to which I have referred, that discrimination against people with a perceived disability is sufficiently covered. Will the Minister set out what she feels the wording in the Bill does, and whether it already covers those issues?

Evan Harris: I share the hon. Gentlemans concern. I have tabled several amendments to clause 13, which we will come on to later, so I will not speak long on this group. I am asking, in respect of all protected characteristics, whether the definition of direct discrimination in the explanatory notes in paragraph 71 on page E9
broad enough to cover cases where the less favourable treatment is because...the victim is wrongly thought to have it
already covers perception. That is not explicit in clause 13, but it is clearly important that the provision not only covers disability and other strands, but is seen to do so. Simply working on the basis of case law or intention behind legislation without making things clear, when we can, represents a missed opportunity.
I know that the Government are keen to ensure that such legislation is accessible to individuals and organisations. Even if the amendments wording is not exactly right, it would serve that purpose well if, as I suspect, the Governments view is that the statute should cover perceptions of disability and, I hope, other strands.

Vera Baird: Perhaps I should make it clear that, in our view, related tothis is probably what amendment 175, which was tabled by the hon. Member for Forest of Dean, is directed towardsis wide enough to cover association and perception. That is our intention, and it is an important point. I want to make that clear at the outset, even though the hon. Gentleman did not lay great emphasis on that amendment. I understand why he set out that query, as he is probing a particular aspect of the Governments thinking.
Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have
a substantial and long-term adverse effect
on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal. However, I agree with the hon. Gentleman that the perception aspect of discrimination is targeted on the intention of the person who is discriminatingI will put that in inverted commas for the moment. The mischief occurs when a person intends to discriminate against somebody who is in the protected strand, even though they have misperceived that persons identity, and they are not in fact in that protected strand. This is another way of protecting those who are in that strand, not of protecting those who are outside it.
To pursue the point further, there is nothing to be gained from requiring people to make reasonable adjustments for somebody who is perceived to be disabled but is not disabled and does not need those adjustments, which would follow on from what the hon. Gentleman is saying and one of his later amendments. In one sense, he is right. A person who is not within the strand, even though they are perceived to be in it, is not covered for all purposes as if they were disabled, running through the gamut of protection that we give to disabled people. However, such people are protected against discrimination and, importantlythis is a point that the hon. Gentleman honed in onthe person whose motivation is discrimination is dealt with under the legislation. We think that that is the right way forward, and with respect, having proved the point, I invite him to withdraw the amendment.

Mark Harper: I am grateful to the Solicitor-General for that reply. Her point about amendment 166 is sound, and I will withdraw it in a moment.
I would like to take the Solicitor-General back to her first point. Following on from our earlier discussion, I would like verification on clause 24 regarding harassment. She is right to say that someone who does not have a protected characteristic does not need a reasonable adjustment because they are not disabled. However, there could be people who have a disability, or who are perceived to have a disability, and that leads to harassment. That is the mischief, as opposed to them needing a reasonable adjustmentwhich clearly they do not. Such people might suffer a detriment based on the fact that they have no disability, but are perceived to have one. For example, a person might be ill treated because someone wrongly thinks that they have HIV or a mental health problem. Is she confident that without amendment 175, the harassment provisions in clause 24 would adequately protect a person who does not have a protected characteristic but is suffering harassment none the less?

Vera Baird: Yes, we are confident of thatI am sorry if I said it too briefly. Let me set out the position more extensively so that it is clear.
Amendment 175 relates to clause 24, which uses the formulation related to in the definition of harassment. It means that protection is not limited to a person who has a protected characteristic. It also covers a person who is harassed because of their association with someone who has a protected characteristic orthis is the thrust of the hon. Gentlemans pointsomeone who is harassed because they are perceived, whether incorrectly or not, to have a protected characteristic. To set out an explicit provision, as under amendment 175, would cast doubt on the issue that the formulation of being related to a protected characteristic would be broad enough to cover harassment based on perception. That would be an unwelcome outcome of such a provision, which I am sure would be unintended. I hope that I have made our intentions absolutely clear. We are satisfied with clause 24, and I hope that the hon. Gentleman will not press that amendment.

Mark Harper: I am grateful to the Solicitor-General for her response.

Evan Harris: The hon. and learned Ladys response was helpful in respect of harassment, but what does the hon. Gentleman feel about amendment 168, to which I spoke, which covers direct discrimination under clause 13. Is he satisfied that the same thing that applies to harassment, as opposed to the definitional amendment that leads the group, should apply? Is there more virtue in amendment 168 than in the intention behind amendment 175? Does he intend to refer to that when we discuss clause 13?

Mark Harper: I am grateful to the hon. Gentleman for his intervention. When studying the group of amendments, I focused specifically on the issues relating to disability. The Solicitor-General was right when she said that people who do not actually have the disability will clearly not require a reasonable adjustment and that, if someone does not make appropriate provision, they will not suffer a detriment. That is not the case with harassment, and she has adequately satisfied me that that is covered by the Bill.
The hon. Member for Oxford, West and Abingdon made a point about issues other than disability, which we shall indeed cover in due course when we reach clause 13. Given the Solicitor-Generals comprehensive reply, particularly on harassment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Schedule 1

Disability: supplementary provision

Mark Harper: I beg to move amendment 167, in schedule 1, page 144, line 16, at end insert
(2A) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a persons ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the persons ability to carry out normal day to day activities for a period of 6 months or more..
We have already referred to this amendment. It deals specifically with the long-term issue of depression. We tabled the amendment to probe whether the definitions in the Bill would adequately cover all those types of disability that fluctuate, but might recur. The amendment is supported by the Disability Charities Consortium, which says that the Bill covers only recurring or fluctuating conditions if they are based on an underlying long-term impairmentin other words, the impairment is long term while its symptoms or effects fluctuate.
The issue of depression goes to point of what the hon. Member for Oxford, West and Abingdon set out when he cited information from the Disability Right Commission. According to my information, people are rarely diagnosed with the related underlying condition, so separate episodes of depression are effectively the effects of the condition and are not covered under the current definition if they do not last for at least 12 months. There are differences of opinion within the medical profession about when episodes of depression are manifestations of an underlying long-term condition, or whether they are discrete episodes. There are often disagreements in court among expert witnesses about the matter.
Acute episodes of depression can be disabling and there is a 70 per cent. chance of having another episode within five years. Depression can carry considerable stigma, in particular with regard to employment. My amendment would rectify that gap in equality legislation, and protect people who experience short-term, recurrent episodes of depression from discrimination arising from their impairment and the surrounding stigma. It focuses specifically on depression alone for the good reasons outlined by the Minister for holding to a definition of long-term in the generality. That specific condition is felt not to be well captured by the existing definition.
Having set that out, I am looking to the Minister to say whether she feels that the existing definition of fluctuating conditions, which she touched on in the previous debate, will adequately cover mental illnesses such as depression, which may not be accurately diagnosed. There is already evidence of cases in which people suffer recurrent episodes but are not adequately protected under the existing law.

Evan Harris: That illustrates the problem with the definition of long-term in schedule 1 that I probed in amendment 180. I support the idea behind the amendment, although the problem is that it is disease-specific. There are plenty of mental health conditions for which the chance of recurrence might not be as high as the 70 per cent. figure that the hon. Gentleman quoted or about which there is less certainty, less data and less research information on the likelihood of the conditions recurrence or of the recurrence of the effects. Therefore, the amendment should be seen as illustrative.
All the hon. Gentlemans points, however, urge the Minister to reconsider her reliance on the wording that the
effect is likely to recur,
because in many cases in which protection is needed, physicians will find it difficult to say that they believe that the condition is likely to recur. It is far better to have a definition that does not require independent medical reports to stretch to cover what is required by the law, but to have common sense apply. Therefore, the amendment illustrates again that we need to find alternative wording that does not depend on a likelihood that covers a balance of probabilities, which would be the wrong threshold for many disabling and debilitating diseases that can and do recur but are not necessarily likely to recur. The amendment covers just one example of those.

Vera Baird: Overall, the broad view is that the issue is one for the medical profession and its diagnosis of depression, rather than for anti-discrimination measures, which already provide for recurring conditions. I remind hon. Members that schedule 1 defines the effects of an impairment being long term, specifically saying in paragraph 2(2):
If an impairment ceases to have a substantial adverse effect on a persons ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect
even if it does not
if that effect is likely to recur.
If a doctor can say that a condition is likely to recur, if evidence from the past on how the individual has reacted suggests that it is likely to recur, or if the evidence suggests that it is likely to recur, the person will rightly be treated as having a fluctuating illness, which is capable of meeting the definition in paragraph 2. However, if we are talking about an awful personal event that puts someone into depression for a period, but they are not depressed in any other sense and do not have an underlying difficulty, and within five years some other awful event occurssuch things can, unfortunately, happen in that sequencethat quite separate element of perfectly sensible depression, as it were, which is a response to an event in a persons life and would throw anyone into depression, ought not to make them disabled.
Most people in such a situation would not want to be classed as disabled. It would be extremely difficult to know what anyone else could do to help them through the interim period, when they have been perfectly healthy because the impact of such an event has not been playing upon them. It is the reverse of what the hon. Member for Oxford, West and Abingdon said. We should not be looking for a way of defining every instance of depression to ensure that it is within the protection of disability provisions. If something is likely to recur, that person obviously has a long-term illness and must be protected. That is the way around the problem, as common sense, which he prays in aid, and medical evidence require it to be.

Mark Harper: I want to probe the Minister on one point about medical evidence. If someone has a condition and there is a fair amount of consensus among medical practitioners regarding diagnosis and the likelihood of recurrencethis returns us to the point made by the hon. Member for Oxford, West and Abingdonwhat she says is perfectly fair and straightforward and will capture all the cases at hand. However, the case put forward by the DCC shows that there is a lack of consensus about the diagnosis of depression in the medical community, and there is a debate about whether it is an underlying condition or whether there are separate episodes. That is why the amendment focuses specifically on depression. There is an argument about the likelihood of recurrence, with no particular agreement reached, and it could end up with cases going to court and experts arguing with each other. That might be inevitable, and the court would then have to take a view.
What information does the Minister have, and what research has the Department done, on depression or any other long-term conditions? To what extent are there differences in medical opinion? Is the diagnosis and the likelihood of recurrence in any way controversial, likely to be challenged or at variance? Some people have an underlying condition and suffer recurrent bouts of depression and its disabling effects. It is not in anyones interest to force such people into a courtroom or a situation in which they have to weigh up different medical experts against each other. As far as they are concerned, they have a disabling condition that periodically recurs. Will the Minister give more information about the state of medical opinion on that condition?

Vera Baird: As with all conditions, the question of whether depression is likely to recur must be a question of fact, and medical evidence will help the determination of that. Obviously, it is likely that such matters will be determined as a question of fact long before they get to court, but there is a limit on what one can do in statute to clarify every possible situation that might arise. I think that the provision is clear, and if the diagnosis is not, that is outwith what can be captured within discrimination legislation. We cannot set down a list of criteria that can be used to determine whether depression is likely to recur. That would be outwith our expertise.
All we can do, which seems a very adequate measure and I think that it works, is set out a fair definition based on, Is it likely to recur? The hon. Member for Oxford, West and Abingdon equates that with the balance of probabilities and all sorts of things that it is not equated with in any way or case. It is an ordinary question: is it likely to recur?
The hon. Member for Forest of Dean gave an exampleI hope that I am not misquoting himthat there is a 70 per cent. chance of depression recurring within five years if it is not a situational depression. Should evidence suggest that someone has depression that is likely to recur, that person will be well protected. When it is not possible to say whether it is likely to recur, we are in a hinterland that can only be determined by evidence of earlier recurrences or by medical opinion. At that point, we are outside the territory of the provision.
The definition of long-term is important and we must distinguish it from people who have a short-term problem or who have a disability as correctly termed. Making an exception for the condition covered by the amendment would probably be unfair on people who have conditions that are subject to the same problems of definition. The hon. Gentleman has adequately probed the issue raised by the disability charities, and probing is what they sought. He has done that job and can now withdraw the amendment to let us go forward.

Mark Harper: Before I do that, I want to say that given that there is a fair bit of dispute and debate about the issueshe is quite right, there are other conditionsperhaps we can place some guidance on the record. Once the Bill has progressed through the House and the other place, perhaps the EHRC, when it is drawing up its statutory guidance, will consider fluctuating conditions and see whether its guidance is as comprehensive as possible and gives employers and others who will be relying on it a proper understanding of the nature of fluctuating conditions.

Vera Baird: Indeed, there will be guidance. There is provision in clause 6 for a Minister to issue guidance to help determine whether a person is disabled. If we can probe the uncertainties of this any further, of course we will do so.

Mark Harper: I am grateful for that helpful intervention. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 7

Gender reassignment

Tim Boswell: I beg to move amendment 195, in clause 7, page 5, line 25, leave out proposing to undergo and insert considering undergoing.
The Committee will remember that we had a full discussion in Thursdays debate on the issues affecting persons who are in the process of, or contemplating, transgendering. It is unnecessary and inappropriate to pick up the whole of that discussion, but I said that I had missed out by not moving an amendment on the specific point raised. I have now done that to give the Minister a chance to respond. My hon. Friend for this purpose, the hon. Member for Hornsey and Wood Green, might want to say something on it, too.
The Committee knowswe debated this and it is not an issue between usthat any persons contemplating transgender issues and their future are not in a simple situation. They are a small minority, and that is why they need our support and attention. The decision might be initiated at an early age, or it might take years to make a decision. It might not, in certain cases, go forward to surgery, medical treatment, the formal process of gender reassignment or the acquisition of legal status in the new gender as set out in the Gender Recognition Act 2004. It is a complex and sensitive picture and almost all individuals will be different.
We are grateful to the Solicitor-General for introducing a more sensitive definition. The amendment simply seeks to tidy up something where the definition could be even better. The difficulty with the words chosen by the Government, which appear in clause 7, are that they require the person at the first stage to be proposing to undergo a process of reassignment of their sex. I think that is a little too precise for the circumstances of the case. I vaguely recall the Oxford philosopher, J. L. Austin, who created a new class of what he called performative utterancesif someone got up and said, I name this ship the Queen Elizabeth, it was difficult to deny that they were actually naming the ship the Queen Elizabeth. It could be that if a person said formally and put it in writing, I am proposing to undergo a process, that would be a performative utterance. They would have deemed themselves to be doing so, and they would automatically receive the benefit of protection of the protected characteristics.
In the real world, it is not like that at all. People are ambiguousthey make tentative inquiries, go and see a doctor, talk to a counsellor and start thinking about it. It would be better and more sensible in those cases if the protection, which is rightly intended by the Committee, was extended to those persons whose status is not wholly determined, but are thinking about it. That is why I came up with the phrase considering undergoing.
I stress to the Committee that that would not be a test with no evidence. If there was an act of discrimination, the person involved would have to show some evidence that they had been considering. They could not make it up afterwardsor rather, they would have to convince a court that they had such evidence. But it would be more informal than saying, I am proposing to undergo a process. It would be saying, I am not quite sure where I am, but I need to think about it. It might transpire in the process of gender reassignment. It would be a softer but not non-existent test. It is entirely consistent with the advances that we have already madewe are just taking it a stage further.
I say to the Solicitor-General that I have proposed those words because they were the first ones that came into my headI have no proprietary interest in them. If she can come up with a better way to catch the more nuanced definition of people starting on the process and extending the protection to themindeed, some of them will really need itthe Committee will be grateful. As I said, I will not stand on the words, but I think the issue is worth considering.

Lynne Featherstone: I will not hold up the Committee for long as we discussed the issue the other day. I am grateful to the hon. Member for Daventry for tabling the amendment, which goes part way to where I was trying to reach, but not the whole way. It is important to introduce the idea of uncertainty and confusion, which populates the transgender world to a far greater extent than the world in which people are settled in their decision to live in one gender or the other. I felt that we had not touched on that complexity or allowed for that confusion, although the amendment goes some way towards that. Paragraph 56 of the explanatory notes states:
The clause also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman transitioning to being a man and a man transitioning to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.
The amendment still does not capture those who are not considering a changethose who are confused, but not considering living in or transitioning to another genderbut who may still experience discrimination because they are not physically identifiable as either a man or a woman, whatever their latent state. I think that the amendment still leaves that area somewhat unexplored, but it is certainly better than where we were. I will also be happy if the Minister considers bringing that into the Bill in some form that gives a voice to those who are not covered by reassignment.

Vera Baird: I can see the point made by the hon. Member for Daventry; it does arisehe already made that point in our debate last week. I am incredibly impressed. Having read Professor Austin myselfhe was a positive jurisprudentialistI can tell the hon. Gentleman that his one reference to Professor Austin makes it clear that he got a lot more out of studying the professor than I ever did, despite many years of application. However, I am not sure that the amendment would help. If it would, we would of course consider it.
After working as hard as we could on the right definitions for clause 7, we concluded that the phrase proposing to undergo provides the best practical coverage. It gives a degree of certainty and more sureness, which the term considering undergoing does not. A person can have lots of ways of thinking about their gender. At what point that amounts to considering undergoing a gender reassignment is pretty unclear. However, proposing suggests a more definite decision point, at which the persons protected characteristic would immediately come into being. There are a lot of ways in which that can be manifestedfor instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away.
Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That, too, would mean that they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them. If anything, a good employer would help them. However, without a clear decision even to propose to do that, it is difficult to see how, practically, an employer will know that the assistance is necessary.
If what is going on is an internal cogitation, with no external manifestation, it is difficult to see how this can work practically. We want to ensure that people start their personal journey

Evan Harris: The problem is the other way around. Often, one can have an external manifestation without an internal decision being made. The fundamental point that we have made in both these debates is that we need to find a way to cover people who, for example, may cross-dress. It is therefore obvious that they may be a target for discrimination, and indeed harassment in certain circumstances. They may not necessarily have made a decision or, in respect of harassment and discrimination outside employment, they may be too youngbelow the age of Gillick competence or Fraser competenceto be legally able to start or to propose externally that they should undergo gender reassignment. There is still a fundamental difference between our positions.

Vera Baird: No. The hon. Gentleman has that completely on its head, to be frank. No one is too young to cogitate about their gender identity. The consequences of doing so may be very different. We are not, as he seems perpetually to be stuck on, talking about the medical model of gender reassignment, on which some people may well be too young to be responsible enough to decide. This is not gender reassignment on a medical model. He really needs to come off that tramline and look at this for what it is. It concerns a personal journey and moving a gender identity away from birth sex. I am sure that that is as capable of being done by a young person as by an older person, and it is indeed likely to have manifestations. Those manifestations are the things that will indicate that some sort of process is in place.
If a person makes the proposalit is a proposal, not a decision where someone says, I will do it and never turn backthat they may move along that pathway, at that point, and at that point only, does it become practical to protect someone. Someone who is having internal concerns about themselves is not manifesting it in any way that can be acknowledged and protected by any external person. As soon as there is a manifestationas I have said already, and we discussed this last week toothe duty not to discriminate comes in.

Lynne Featherstone: I would like the Minister to elucidate on the situation in which someone is not considering living in another gender, but the external manifestation leaves them looking indeterminate. How would they get protection if they were to be discriminated against for being unable to be identified as male or female?

Vera Baird: It would depend upon the definition in clause 7. If she feels that such people are neglected, I should point out that nothing in the amendment would help them. We are talking about an amendment changing the definition of when someone triggers this particular protection, not extending the definition within clause 7, so we can focus on the remarks made by the hon. Member for Daventry.
As I have said already, if we thought the hon. Gentlemans proposals would help, we would consider them further. However, we do not, for the reason I have outlined, which is that there has to be a practical way to trigger protection against discrimination. Let us remember the perception element. If people manifest what is thought to be a tendency to move towards the opposite sexaway from their sex identitythey might be perceived to be within the definition under the provision. They will therefore have protection when they make those manifestations on the basis of perception. Any behaviour that may be a precursor to an individual proposing to undergo gender reassignment may be covered by perception, so anyone who has gender diaspora and experiments with transvestitism before starting the process of living full-time or even from time to time in what they see as becoming their acquired gender will be protected.
There does not seem to be a problem about people who are considering reassigning their gender. We have covered the territory directly under the definition and through perception to cover those who are making manifestations or who may be misperceived to be in the process of gender reassignment. We have to cope with the fact that the public are probably not massively well informed and will make relatively simple judgments about people. The individual who is misperceived to be on a journey, when, in fact, they are manifesting something that is not part of a journey, will be protected. We have deliberately cast the definition widely to cover all those who need protection against discrimination. We have no evidence that there is a need for anything wider.

Evan Harris: As for whether the perception works in a way that the Minister identifies, Equality Network noted in the Governments equality impact assessment at paragraph 2.20 her view that protection on the basis of perceived gender reassignment will provide new protection for people who are considered as being transvestite. I, like Equality Network, welcome that assertion. However, the concern is that such people might not be adequately protected on the basis of perceived gender reassignment, because relying on that provision would perhaps require proof that the discriminator wrongly perceived the person to be transsexualproposing reassignment, as the Minister put itas opposed to knowing or perceiving that they were transvestite, inter-sex or androgyne. If the perception has nothing to do, in the mind of the discriminator, with gender reassignment but relates to whether someone is a transvestite, would that be covered by the perception provision?

Vera Baird: I am not sure of the nature of the hon. Gentlemans argument, because I was sitting down when he began to speak. However, I am happy to help him as best I can, although it is a fairly endless job. The matter of perception rests on whether someone is perceived to come within clause 7. It is as simple as that.

Tim Boswell: I suppose that it is an indulgence that we end up second-guessing the Ministers response before we have finished with the amendment. In this case, I did almost precisely that. The Minister understands why we tabled the amendment, and she has been generous about it. In effect, she has put the counter case in that such things are difficult to tie down without a fairly clear evidential test. I accept that, but I hope that I had at least entertained the possibility that any relevant evidence could be considered as part of the process of considering undergoing. We are really talking about what would be a test, and as the hon. Member for Oxford, West and Abingdon has reminded the Committee, that is considered not only by the individual, but by the potential discriminator.
I probably have to give ground to the Solicitor-General. The only point that I would stick on with my amendment is that, in a sense, No. 1 for a gender discrimination counsellor or medic consulted by someone who is contemplating the process should be to say, Sign a chit here, saying you are proposing a process of reassignment and that will protect you, otherwise you might get hitdiscriminated against, or whatever. That could trigger a decision or perceived decision that might not be helpful to the persons interest.
We are going to have to leave the argument on that side of it, legally, except that the Solicitor-General has introduced some rather interesting additional tests, which go some way towards meeting the concerns of Liberal Democrat Membersclearly not far enough for them, but far enough for me.
My amendment is pinned on a specific issue: is the performative action saying, I propose to undergo this? The Solicitor-General has said that that could be one example. If I wrote that I was consulting a specialist about the situation, that would be incontestable. She also said that a number of actions, including cross-gender dressing, behaving in a way that is not consistent with the natal gender or whatever, might be regarded as similar performances and would activate the protections under clause 7. If sothat is obviously her viewwe should record that that is the case. That is a welcome advance, because it gives additional protections.
We need to come back to the real-world situation. People with considerable vulnerability may be treated badly in different ways, whether through formal discrimination or not. Often those people who are mistreating them are unfamiliar with such conditions and will not have the appropriate sensitivity. It may well be that the Solicitor-General is right and that we cannot capture all that in the anti-discrimination legislation without stretching the test of what is proposed beyond its normal limits or the possible evidence. However, it is important always to bear in mind that there are people who have such problems and need to be treated properly. Perhaps it cannot be done under anti-discrimination law; certain cases could be a matter of criminal law, if people are hit, threatened or abused, which is not acceptable.
Given the Ministers assurances and the extension of what might be termed the literal-minded approach to take other factors into account, I am minded to withdraw my amendment on the understanding that the Solicitor-General will continue to review the matter. If she can come up with any better ideas that are a little more pointed but meet such cases, we would be grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8

Marriage and civil partnership

Lynne Featherstone: I beg to move amendment 127, in clause 8, page 6, line 7, leave out or a civil partner and insert
, a civil partner, co-habiting or single.

An amendment to protect single and co-habiting people from discrimination.

Joe Benton: With this it will be convenient to discuss the following: Amendment 128, in clause 8, page 6, line 10, leave out
or is a civil partner
and insert
, a civil partner, co-habiting or single.
Amendment 129, in clause 8, page 6, line 12, leave out or are civil partners and insert
, civil partners, co-habiting or single.

Lynne Featherstone: The amendment has been tabled to probe the Governments thinking on why single and cohabiting people have been left out. Why are marriage and civil partnership protected? Why are they protected and a cohabiting couple or a single person not? It is about relationship status and, in an anti-discrimination Bill, we would not expect any relationship status not to be as important as another. If the provision is not amended, surely single people and cohabiting couples will face the possibility of real discrimination. I would welcome the Government elucidating whether there is something particular that they had in mind that applies to married couples and civil partnerships and from which they, but not cohabiting couples and single people, need protection that.

Vera Baird: The hon. Lady would help me enormously if she defined a cohabiting couple.

Lynne Featherstone: I would define a cohabiting couple as two people living togetherperhaps as simple as that.

Vera Baird: Brothers and sisters? Mothers and fathers?

Lynne Featherstone: Not a familial relationship. The point is to probe the equivalent of a married couple or a civil partnership, which involves love and a sexual relationship.
The point is that the cohabiting couple and a single person are likely to face the same kinds of discrimination. If they are excluded from the protection, it will create a whole new disparity: treating people differently according to their relationship status. To give a couple of examples, would it not be wrong for a landlord not to want to rent to a single person because he believes that a single person is less likely to be responsible or settled, or more likely to have late-night parties? What about an employer who refuses to give work to a single person applying to look after children because they believe that only a married person is appropriate for such a job? What about a hotel that refuses to give a cohabiting couple a room because they are not married, even though they may have been cohabiting and in partnership for years? I would be grateful if the Minister would elucidate why those in the particular relationships of marriage and civil partnership are included in protection and not cohabiting couples or single people.

Vera Baird: I am grateful for the definition, which saved me from raising questions of uncertainty about brothers and sisters and so on. The hon. Lady makes an interesting point about hotel discrimination. There is a nice story, which now goes way back, about the then Archbishop of Canterbury going with his wife to a hotel, signing the register Geoffrey Cantuar and Mrs. Fisher and being asked to leave because they were not married, although of course they were. For the sake of those who are not Latin scholars, unlike the hon. Member for Daventry and me, Cantuar is how the archbishopric of Canterbury is described in Latin.
The hon. Lady is right that life is fraught for all sorts of people, but the point of the Bill is to provide protection against discrimination where it exists and where protection is necessary. We would add further characteristics to the scope of protection under the Bill if that were an appropriate and proportionate response to a real problem, but we have not had any evidence that such problems are faced by those who cohabit or are single. In fact, as part of the discrimination law review, the Government consulted on whether to remove the existing marriage and civil partnership protection, because there is not a lot of evidence of discrimination on that basis either. We listened to the responses on whether to remove it. They were pretty much 50:50. Some responses suggested that incidents of discrimination on that basis might still be taking place, but there was no indication of discrimination against those who cohabit.
It is a difficult definition. At which point does someone stop being a single person and become a cohabitee, after how long would someone qualify for that separate category and might they be in danger of losing their protection under the other category too quickly? It is an issue of certainty of definition as well. I hope that I have reassured the hon. Lady that it is a sensible coursejust aboutto protect married and civil partners, even though there is only the slightest evidence that they face discrimination, and that it would be both impractical and unnecessary to extend the measures following her amendment. I invite her, having probed the issue, to withdraw the amendment.

Lynne Featherstone: I have listened carefully to the Minister. With little evidence for marriage and civil partnerships and no evidence for cohabiting couples and singletons, I can understand the difficulty. It goes against the grain to leave a measure that bestows a differential between people in different relationships in an anti-discriminatory Bill, but as I do not have the evidence to bring before her, I will have to leave that disparity in place. However, I would like to put it on the record that I think it creates a differential.

Mark Harper: The hon. Lady is making a point about creating a differential. The provision is carried forward from the existing law. I was interested in the proposed amendments, so I went back to the look at the Sex Discrimination Act 1975. Some of the language in that Act seems rather strange now. The Solicitor-General will correct me if I am wrong, but the clear intention of that measure was to protect married women who may be discriminated against, specifically in an employment field because employers felt that they were not sufficiently committed. Employers might, for example, discriminate because they thought that women were going to have children. That was why the measure was introduced. The Solicitor-General was saying that the evidence today is that such discrimination does not exist widely if it exists at all. However, the decision on introducing the provision was finely balanced. The hon. Member for Hornsey and Wood Green raised an important issue, but it shows how the world has changed since some of the provisions were introduced. It is not a new provision, but simply one that exists in law and is being carried forward.

Lynne Featherstone: I thank the hon. Gentleman for his intervention. It is therefore interesting to ask this question: if the intention of the original Act was to prevent discrimination against women because they were married, why is there not more evidence of such discrimination? I am surprised that there is not more evidence. For example, Nicola Brewer, the outgoing chief executive of the Equality and Human Rights Commission, has said that married women were being discriminated against before they were even employed, because maternity packages were reckoned to be so good.

Vera Baird: A person can get pregnant without being married, so is that not discrimination on the basis of sex? That is very adequate coverage. May I tell the hon. Lady that the only bit of evidence that we could find of prejudice or discrimination at all was one case that showed that there were instances of discrimination when an employer did not allow married people to work together, because that might interfere with their commitment to the business? That is the only example we could find.

Lynne Featherstone: It is a bit like not being able to go out with or date people in the same office, which often happens.

John Mason: The hon. Lady was looking for examples. Some years ago, I wanted to visit a Scottish island, but there was no bed and breakfast accommodation for single people whateverI suppose because the establishments only had twin or double rooms. I accepted that because it was a commercial decision. They are quite small establishments and they cannot cater for everybody, so I did not feel discriminated against, but is that an example of such discrimination?

Lynne Featherstone: When I was preparing for the debate on this amendment, I wondered whether those sorts of issues would be dealt with in this part of the Bill, but I was unsure whether marketing and sales was a legitimate or justifiable way to go. There is an unfairness in people having to pay a single supplement when they take a single room in a hotel and a whole raft of similar things. What is the Solicitor-Generals view?

Vera Baird: That is not about marital status, but about going on holiday alone, which is a difficult strand of discrimination to protect someone against. We are having a whip-round now to buy the hon. Member for Glasgow, East a tent.

Lynne Featherstone: I came to the same conclusion, which is why I did not use such an example as an argument. It makes me slightly uneasy to leave a differential in relationship status in a Bill that is meant to bring things together, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9

Race

Question proposed, That the clause stand part of the Bill.

Evan Harris: I wish to raise two issues. First, the fact that the Bill clearly extends the provisions to colour or nationality is to be noted and welcomed. Secondly, however, why have the Government chosen not to go down the path of including the question of dissent? As I understand it, the provisions in the original directive enable the Government, if they so choose, to talk about discrimination on the grounds of dissent as part of racial discrimination. It is not clear whether the Government have not taken that course for a specific reason or whether they think that it is already covered.
There are questions about whether we have sufficient coverage of discrimination if the specifics of racial discrimination, including that on the basis of someones descent, are not covered. There is clearly an overlap into issues of genetics and so on, and questions about caste discrimination would come under that. It would be helpful if the Minister clarified the Governments position. This is a significant clause on race discrimination.

Vera Baird: The hon. Gentleman suggested that this is an extension, but I am not sure why he thinks that that is the case. It troubles me, and I would be grateful if he would set his case out further. This is not an extension of the definition; we have covered discrimination on the basis of colour for a long time. All four of the limbscolour, nationality, ethnic and national originare there, and always have been. I need to understand what he thinks has been extended, so that I can answer him appropriately.

Evan Harris: I am looking at my briefing again. As I understand it, because the regulations with respect to the EU race discrimination directive were introduced under section 2 of the European Communities Act 1972, they could not go further than the provisions of the directive. Therefore, when they were originally introduced, the new regulations could not cover race discrimination complaints brought on the grounds of colour and nationality. That means that for the new definitions of indirect discrimination and harassment, the shift in the burden of proof relating to the genuine occupational requirement exception will apply only to discrimination on grounds of race, ethnic or national origin, and not to colour or nationality.
That was the previous position as I understood it, but I thought that it had been dealt with effectively in primary legislation. There was primary legislation, and the Government were not restrictedas they had beento implementing that directive through secondary legislation. I hope that my understanding is correctif it is not, I will apologise.

Vera Baird: The hon. Gentleman suggests that we have not outlawed discrimination on the basis of colour before today, which is an outrageous and bonkers suggestion. The briefingwhich I think the hon. Gentleman needs to read againstates that we have changed where the burden of proof lies. The directive separated colour and nationality from ethnic or national origin, and put the burden of proof in tribunal proceedings on one side for one group, and on the other side for another group. Discrimination on the basis of colour and nationality, as the hon. Gentleman knows, has been outlawed in this country for a generation. There is no extension in the definition, which is what we are talking about. When we come to talk about the burden of proof, I will explain to the hon. Gentleman how it has been extended. The definition has not changed.

Evan Harris: I was not proposing a probing amendment or talking about the definition. I do not see why the Minister should consider it bonkers and misunderstand my point, which is that the Bill fully extends that protection in other areas, which previously we were not able to do. I return to my main point about whether the Government have a view on the question of descent being part of the definition of race.

Vera Baird: It is extraordinary that somebody who appears to focus so closely on some arcane points of discrimination law can suggest that this is an extension of cover in clause 9. It is not. It is carried forward from the old legislation. I am very surprised. However, to look at another issue, in our view descent is likely to be part of ethnic or national origin. In due course, we will get to the meat of the hon. Gentlemans briefing note, and he will need to find it again later in the Bill.

Evan Harris: I am disappointed that the Minister refuses to answer the question and resorts to a delaying tactic of criticism and abuse. That is not necessary in a Committee where, so far, we have had effective scrutiny and a good dialogue. She may see it as an opportunity to show-boat and grandstand her great expertise, and we recognise her experience as a lawyer. The question that I urge the Minister to address is for what reason have the Government chosen not to include descent in the definition of race under the clause? Does she think that it is adequately protected otherwise? Is not extending the clause in that way a policy decision made by the Minister, whose responsibility is to steer the Bill through the Committee?

Vera Baird: I have already answered that question.

Evan Harris: On a point of order, Mr. Benton. the Minister says from a sedentary position that she has answered it.

Joe Benton: The Minister contends that she has answered the question. Does the hon. Gentleman have a further question?

Evan Harris: We will have to look at the record to see whether the point that I raised twice has been answered. That means that we may have to come back to it at a later point. Clearly, however, there is nothing more that I can do to elicit an answer on that point.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Religion or belief

Evan Harris: I beg to move amendment 215, in clause 10, page 7, line 23, at end insert
(4) The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic..

This is to make sure that organisations or individuals can not use exemptions based on religion or belief to discriminate on another ground for example against persons whose lifestyle, because they are gay or unmarried, is not consistent with orthodox practice of that religion or belief.

Joe Benton: With this it will be convenient to discuss amendment 216, in clause 10, page 7, line 23, at end insert
(4) The meaning of religion or belief does not include the degree of support for matters of public policy or for the policies of a political party..

This is to make sure that organisations or individuals which are quasi-political can not benefit from exemptions based on religion or belief.

Evan Harris: The amendments cover different issues. They seek to probe the extent to which the Government agree with the case law that has emerged. Amendment 215 would clarify that
The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.
There are two other amendments on the amendment paper, which were not tabled in time to be selected. They put it in better terms, and are in relation to the protected characteristic of religion or belief, so that a reference to a persons religion or belief would not include reference to that persons other protected characteristics.
The point about the amendment is to question whether the Government agree that it is not acceptable for people to seek to use the opportunity, which exists rightly, to discriminate on the grounds of religion in certain matters such as employment where certain conditions are met, on the basis that a criterion is set for religion, which is not met in the definition of religion, because someone is gay, or, less directlyalthough I think it goes to the heart of what ones sexual orientation isbecause someone is having sexual relations outside marriage. For example, someone may be having sex with someone of the same gender and, by definition, that will always be sex outside marriage.
We have had assertions from people representing religious organisations that they should be entitled to discriminate on the basis of sexual orientation, although they point out that it is not on the basis of the fact that a person is attracted to someone of the same gender, but on the basis that they act on that attraction and are engaged in otherwise lawful sexual relationships with someone of the same gender.
In case law, we have had a number of judges who were very clear.

Mark Harper: I am not trying to pick on the hon. Gentleman, but he said that amendment 215 was not as brilliantly drafted as it might have been. I sat here, wishing to stop him before he got on to the specifics. Amendment 215 says:
The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.
It may be that I am particularly dense, but I do not have the faintest idea what it means. Perhaps other members of the Committee do not either. Will the hon. Gentleman explain what he is getting at?

Evan Harris: I was going to through the example that I gave. It may be argued by some people that someone cannot be of the religion, criteria having been set on that, if they are gay. That is basically what I am saying. For example, there is a provision in the Bill, which I think we all support, whereby a religious test could be required for some employment. The definition of religion is given in the Bill. Prospective and actual employers might be under the impression that they can say, This person does not practise the right sort of religion. I do not want to name any particular religions, because it gets invidious, but I fear that I may have to.
Let us take Catholicism as an exampleI do not say that this occurs, but one can see how it might. Such an employer would say that someone has to be a Catholic in order to work for them. That person might indeed be a Catholic but, if they are gay, it could be the view of the employer that they do not fulfil a religious criterion because orthodoxy in that religionCatholicism might not be a good examplecannot include someone who is gay or, more frequently, expresses a sexual orientation that by definition leads them to be outside the religion. An amendment that we will come to later deals with that. So a potential employer will say, as they have in briefings to this Committee, that they do not seek to discriminate against people who are gay, but that they want to be able to discriminate against people who have gay sex.
John Masonrose

Mark Harper: rose

Evan Harris: I will give way in a moment, if I may, to the hon. Gentleman who asked the original question. I want to ask him whether he understands the point that I am making.
Employers want to be able to discriminate on the basis of religion, not on the basis of sexual orientation, where they have less scope, for reasons that we will come on to discuss. The person may not fulfil the religious criteria that they are laying down, because their lifestyle may be incompatible with religious orthodoxy. May I ask the hon. Gentleman if he understands the point that I am making?

Mark Harper: I thank the hon. Gentleman for that explanation. I am clear about the point that he made and, now that he has made it more clearly, I can see that I do not agree with it. The example that he chose was a particularly poor one. As a Roman Catholic, I should declare an interest, but I do not think his point was well made. I do not know of any mainstream religion that actually discriminates, or says that someone cannot be a believer in that religion because of one of the protected characteristics. There is nothing in Catholic teaching that says someone cannot be a Roman Catholic if they are gay.
On the hon. Gentlemans particular point about employment, which we will come on to later, the teaching does say that if, for example, someone wants to be employed in a particular role within that Church, their behaviourwhat they do, not what they arehas to meet certain standards. Those are two very different things. That is why I was having trouble following the meaning of his amendment 215, which talks about someone having protected characteristics and not being able to be part of a religion, rather than carrying out certain behaviours, which do not necessarily follow from that protected characteristic.

Evan Harris: First, I am pleased that the hon. Gentleman understands my point. I accept that one can make the differentiation. I just seek to make it clear that a test on conduct has to be argued on that basis and not on the basis of religious criteria. The point I am making is that we will see exceptions, based on sexual orientation or conduct issues, that are entirely separate and, in respect of discrimination allowed in employment by religious organisations on the basis of sexual orientation, far narrower than those allowed on the basis of religion or belief.
I could go into where that is in the schedules but the hon. Gentleman should take it from me that there is more scopethere are fewer qualifying conditions to be metin order for an employment exemption to be made on the basis of religion than sexual orientation. I think one can understand why, and I am not opposing those per se. It is important that the religious criteria, which can be used in more cases, are not used as a proxy for discrimination on the basis of sexual orientation, or sexual practice, which is closely linked to sexual orientation.

John Mason: I rise to follow on from the point made by the hon. Member for Forest of Dean. I wonder whether the hon. Member for Oxford, West and Abingdon would accept that, for most religions, including Christianity, Islam and Judaism, sexual behaviour is dealt with within the religion. There are certain standards that are expected. The religion also goes into peoples attitudes, but the main point is that sexual behaviour is dealt with and is a concern to the major religions.

Evan Harris: Indeed. I do not think that we can change the fact that it is a concern. However, we are talking about the law of the land, and I am clear that what I want to be confirmed is that, if people want to discriminate against others in a post or in a religion, on the grounds of sexual orientation, they need to do so on the basis of the framework set out in the schedules for sexual orientation and not seek to do it on the basis of religionI will go into why that is in a moment.
The issue that the hon. Gentleman has just raised underlines the point that many religious people hold the view that one cannot, in some orthodoxies, for example, be a Muslim if one is gay or is having gay sex. I am not seeking to castigate them for doing thatthey are entitled to their viewbut we have to make sure that people do not suffer in employment and other areas from the pursuance of that view. That should not be provided for.

Tim Boswell: Can the hon. Gentleman clarify, to me at least, whether he is prepared to consider that sexual behaviour, as opposed to sexual orientation, could, in certain circumstances, be a legitimate interest for religion? If he is saying that the religious hierarchies are unable to make judgments, on the basis of their moral view, about what is, or is not permitted by way of behaviour, as opposed to orientation, we should know that that is his position, which I do not share.

Evan Harris: I refer the hon. Gentleman to schedule 9, if I may, because it is important to understand what exemptions exist. I am not arguing against them. I am arguing that the exemptions should be used in the right way, dealing with the right thing. Paragraph 2 of schedule 9, on page 181 of volume II of the Bill, is headed, Religious requirements relating to sex, marriage etc., sexual orientation. In sub-paragraphs (1) to (8) sub-paragraph (8) has been mentioned previously paragraph 2 sets out the basis upon which sexual orientation can be used as a basis for discriminating in employment and it is a good example. One can see that that is limitedan issue that we dealt with in Committeeby sub-paragraph (8), which states that employment, where allowed,
is for the purposes of an organised religion only if the employment wholly or mainly involves
(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).
My view is that the Government are right to put in statute the narrow definition of that exemption that is allowed for in the original directive and stems from the Amicus judgment. The Government won that in a positive way for the people making the claim because the view was that the provision in the original employment discrimination regulations in 2003 had to be interpreted narrowly.
I draw the attention of the hon. Member for Daventry to paragraph 3 over the page, where there is a separate exemption headed, Other requirements relating to religion or belief. It is a short paragraph, where there is not that restriction on what can be done. Therefore, an organisation with an ethos can put down  an occupational requirement which is
a proportionate means of achieving a legitimate aim
or similar wording, as that itself is subject to amendment. Paragraph 3, sub-paragraph (c) states that
the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
That is broader. My point is that, if someone wants to discriminate against a person on the grounds of sexual orientation, they need to fit within paragraph 2, rather than paragraph 3.
The reason that I raise that concern is that in evidence to usboth oral and writtenthe Catholic Bishops Conference states, for example, in written evidence E14 that it wants to be able
to exclude from a Parish position dealing with young people a candidate who had
and it goes on to describe something to do with behaviour. A parish position goes wider than someone dealing just with liturgy, as set out in sub-paragraph (8). The Catholic Bishops Conference is saying that it wants more room for manoeuvre. It gave the example of someone
who had divorced their spouse, civilly re-married and created two broken families within the same Parish community.
We do not necessarily need to go into that example, although that is a rather subjective way of looking at someones circumstances. However, in its oral evidence, the Catholic Bishops Conference says that it might wish to exclude from employment someone who is having sex outside marriage. My point is that it should not be able to do that on the grounds of the religious exemption.

John Mason: Does the hon. Gentleman accept that it would be strange if, for example, a youth worker for a religious organisation such as a Church were teaching that organisations teachings to young people, but living a life that was the opposite of what they were teaching? Surely, the way in which they were teaching would lose credibility.

Evan Harris: For obvious reasons, I do not want to go too far into the wording of the schedule, but that is dealt with in sub-paragraph (8), which says that if the employment
wholly or mainly involves...promoting or explaining the doctrine of the religion (whether to followers of the religion or to others
the person is entitled not simply to apply an indirect condition saying, Dont have gay sex, but to discriminate on the basis of sexual orientation, where it is otherwise justified. Sub-paragraph (8) is what should be relied on. The hon. Gentlemans example could fit that, and that is what the organisation should use. However, one could not apply that to any youth worker doing anything, because that would not necessarily wholly or mainly involve
promoting or explaining the doctrine of the religion.
Youth workers employed, for example, by the Catholics do a great a job. It will come as no surprise when I say that that is not simply because they promote or explain the doctrine of their religion, but because of the important wider work that they do, which is pastoral and not necessarily religiousindeed, many of their clientele will not be religious at all, but will appreciate their intervention.

Tim Boswell: I am prepared to concede that there might be cases in which I have some sympathy for what the hon. Gentleman is arguing. Nevertheless, will he at least consider the possibility that if conduct that is scandalous or an affront to the teachings of the religion becomes public knowledge, that is likely to make it difficult for a youth worker or somebody else in a pastoral position to discharge their responsibilities, even if those are not within the rubric of wholly, mainly or primarily
promoting or explaining the doctrine of the religion?
Something that is clearly contrary to what is taught is, by itself, offensive and may be subversive of the organisations teaching.

Evan Harris: The hon. Gentleman puts his finger on the nub of the whole question of sexual orientation discrimination in the Bill as regards religious organisations.

Tim Boswell: The hon. Gentleman says that this is the nub, but he also used the words sexual orientation. Much of the concern of the organised Churches and others relates to sexual practice, rather than orientation. I just wanted correct him.

Evan Harris: It is important that I deal briefly with this question now because it comes up in the definition of sexual orientation in another group of amendments, and I do not want to queer the pitch, if hon. Members will excuse the expression.
At paragraph 29 of the Amicus judgment, the judge, the honourable Mr. Justice Richards, said:
Part of the background to the wording of regulation 7(3),
which was at stake,
and one of the matters that will need to be considered in examining the challenge to that provision, is a distinction drawn between sexual orientation and sexual behaviour
he italicised the words orientation and behaviour. He continues:
As regards the protection conferred by the Convention, however, I do not consider there to be any material difference between them. Sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a persons private life and identity.
That is the subject of a later amendment, but it needs to be understood that I, and more importantly case law, do not recognise that distinction in discrimination law, as opposed to peoples opinions. Whether the Government agree is critical, and we will deal with that when we debate another group of amendments.

John Mason: The hon. Gentleman is basically saying that sexual orientation and sexual practice are so closely linked that they cannot be separated in reality. Does he also accept that religious belief and religious practice are so closely linked that they too cannot be separated?

Evan Harris: It is not what I think, but what judges who have interpreted employment regulations, the EU directive and the human rights convention think. I quoted a judge. Judges have recognised that sexual orientation and its manifestationnot any sexual conductare inextricably connected with a persons private life and identity such that one cannot draw a distinction.
Case law may not show that judges have taken a similar view on religion. We could head down a series of paths had they done so. We will deal with that question separately.

Mark Harper: The reason why I have tried to probe the hon. Gentleman on what amendment 215 meant is this: given the nub of his argument about the nature of discrimination and employment and that we are going to spend quite a lot of time talking about schedule 9, would it not be better to deal with the issue there, rather than trying to introduce a sweeping amendment about the definition of religion? I am not aware of any mainstream individual who is outwith a religion because of one of the protected characteristics, as opposed to their practice and conduct.

Evan Harris: First, I concede the point that the amendment may not be the best draftedI refer the hon. Gentleman to others on the amendment paper that were not selected. The debate may well be better placed or dealt with by a parliamentary agreement on the intention of the measure.
On the second point, I think that the hon. Gentleman has made a concession. He said that some people believe that sexual practice is a fundamental tenet of religion that has to be followed. My point was that convention law, and I believe our discrimination case law, make it clear that the manifestation of sexual orientation, whether heterosexual, homosexual or bisexual, is inextricably connected with sexual orientation. We are saying that in law, religious organisations are not entitled to justify religious discrimination to make a distinction between sexual orientation and sexual practice.

Sandra Osborne: Although I accept that many organised religions do not accept homosexual sexual behaviour as being within their doctrine, it is contested, and many Christians do not agree with that position. The General Assembly of the Church of Scotland has recently voted to endorse a Church of Scotland minister who is currently living in a gay relationship and it is looking at the general issue. What would be the implication of a Church of Scotland decision to accept that position generally?

Evan Harris: On the narrow issue, I welcome that, but I am saying that what religions should believe is not my business. I am interested in protecting people under discrimination law from the potential impact of such beliefs. I have enough arguments with people of religion to seek new ones. I understand that some people sincerely feel that a person cannot be gay and be a priest.
However, paragraph 2(8) makes it clear that a religion is entitled when it selects priests to apply discrimination based on sexual orientation. I do not have a problem with Churches doing that. Whether or not I support the view of the General Assembly of the Church of Scotland, it is its business, as it should be. It should use the exception in paragraph 2(8) if it does not wish to take such decisions. The fact that the assembly has decided that it does not need to use paragraph 2(8)(a), even in a proselytising role, is of interest, but it is not my main point. My main point is that religions should not be able to use sexual orientation or its lawful manifestation as a basis for religious discrimination.

Mark Harper: I will be brief. First, the hon. Gentleman said that it was not his business to tell religions what to believe, but amendment 215 does exactly that. It says that the meaning of religion or belief has something to do with protected characteristics and what they can or cannot believe. Secondly, given that he has such a problem with schedule 9 and some of its contents, why has he not tabled any amendments to it?

Evan Harris: I did not believe that we were dealing with schedule 9 this week. [Interruption.] I think it is useful to have the debate on this clause before deciding how to handle schedule 9. I support it in its current form. It would be bizarre to table amendments to something that I agree with, other than to probe the background. I do not think that saying in discrimination law that religion does not include sexual orientation in its definition is in any way telling religions what to believe. Under article 9.1 of the convention they have an absolute right to believe what they wish, as we all do. What they believe is a matter for them. The state has an interest and Parliament has an interest in protecting people from discrimination.

John Mason: The hon. Gentleman emphasises the link between sexual orientation and sexual practice. Would he accept that there is a link between religious belief and religious practice and that it could be discrimination against religious belief if we criticise and try to tell religious people not only what they have to believe but what they can put into practice?

Evan Harris: We are all free to criticise everything. It would be a huge restraint on freedom of expression if we were not free to criticise anyones views, especially if they are contentious. As the hon. Gentleman knows, I fundamentally support the right of religious organisations to contend with each other as much as possible. That is why I have supported free speech initiatives in this House for a long time.
Case laws view is this:
Sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a persons private life and identity
and so cannot be dealt with separately. We will come on to deal with whether a manifestation of religious belief is part of the definition and can be subject to a direct discrimination claim. The ruling in the Ladele case by the Employment Appeal Tribunal was very clear. If a service provider such as a council discriminates against a person who believes it is wrong to provide a service to gay people, it is not direct discrimination to subject them to detriment. It is indirect discrimination, clearly, and in the Ladele case it was found to be objectively justified. We can go into that when we get to that part of the Bill.
I need to deal with the point made by the hon. Member for Daventry. He talked about scandalous behaviour. It will not be sufficientthat is the whole point about anti-discrimination lawfor gay people to be sacked on the basis that their lawful behaviour is deemed by their employer to be scandalous, whether that is a religious employer or someone else, unless the religious employer can cite the exemption given in paragraph 2 to schedule 9. The requirements need to be met. If it is a priest, it is not material whether they think it is just because the Bible says it is wrong, they think it is scandalous, or there is some other reason. The justification is not required as long as those conditions are met, but if it is clearly random it will make it more difficult to fulfil some of the conditions.
Simply saying that something is scandalous tends to discriminate on the basis of sexual orientation. That could enable someone to set a criterion in employment that someone who is gay cannotor would notmeet if they act out their sexual orientation in their private life in a normal manifestation, which is their absolute right. It means that there will be no protection in employment law from discrimination based on sexual orientation. That is why the amendment, or a version of it, is needed somewhere, preferably in statute. I believe that it exists in case law to protect individuals from such discrimination, but I would be interested in the Ministers view as to whether that is the case.

Tim Boswell: I am grateful for the hon. Gentlemans elucidation of my point. He says that it is necessary to produce a justification under paragraph 2 of schedule 9. As currently drafted, paragraph 3, which deals with Other requirements relating to religion or belief refers to
a proportionate means of achieving a legitimate aim.
Is he saying that that is not, or could not, be relevant in this context of behaviour? For this purpose, I draw a distinction between orientation and behaviour.

Evan Harris: In my view, the distinction that the hon. Gentleman makes between a lawful manifestation of sexual orientation and sexual orientation is not valid, and I am backed up in that by the judgment that I read out. That issue will be dealt with later. I accept that we will have a shorter debate on the subject, Mr. Benton, as we have covered much of the issue now. However, I do not accept part of that premise.
Paragraph 3 of schedule 9 cites
a requirement to be of a particular religion or belief.
That requirement cannot refer to sexual orientation, or its manifestation in the terms that I have describedits own manifestation, not any manifestation or an unlawful one. That is what the probing amendment seeks to clarify. I think that I have got that point across.
A person can, however, seek to make that distinction in paragraph 2. In sub-paragraph (5), the application of a requirement on sexual orientationwhich covers orientation or behaviourengages the compliance principle, or the non-conflict principle in sub-paragraph (6), which is to comply with doctrine. That means that for proselytising or representative roles as set out in sub-paragraph (8), the distinction can be made.
I am trying to ensure that people are clear that they cannot make that distinction under the lower threshold in paragraph 3. The hon. Member for Daventry nods, and I think that he understands the distinction that I make, even if he does not necessarily agree with it. I hope that he will agree with it, as there is clearly an option that allows religions to do what he would wish them to do, if it can be justified under sub-paragraph (2), regardless of whether something is considered scandalous or simply non-doctrinal.

Tim Boswell: For the avoidance of doubt, and so as not to weary the Committee with a long speech, I agree with the hon. Gentleman regarding the prevention of employment to somebody on the grounds of a characteristic that one does not like, which may not be under the persons control. However, notwithstanding the strictures that he has brought about, I feel that we must have regard to a situation where the conduct of the person in practice, or their commitment to refrain from that conduct, is not sufficient to satisfy the authorities that it will not give rise to a scandalous situation. I do not think that it is sufficient to put that in terms of the representative activities that are adumbrated in paragraph 2 of schedule 9. However, I agree with the hon. Gentleman that that is the area in which we need to look for relief.

Evan Harris: I regret that the hon. Gentleman has put it in that way and I hope that we can discuss what he is saying outside the Committee. We are going back to the 50s. If being gay is scandalous [Interruption.] I am not saying that the hon. Gentleman thinks that, but there are some religions that think it is scandalous. Those religions should not be able to use that as a basis for dismissing someone, or not employing them, unless they comply with the role set out in paragraph 2(8), which regards priesthood, or activities that are wholly or mainly involved in representative or religious promotion or work. I defend the right to make that distinction, but when it comes to a caretaker or a teacher in a faith school, lawful private behaviour associated with a persons sexual orientation cannot be used as a basisin my view, under the schedulefor their dismissal and the wrecking of their life and career. That is why we have modern anti-discrimination legislation. I do not seek to persuade religious people that it is not scandalous; I only seek to ensure that the law protects people from employers who hold that view about them either on the basis of their sexual orientation or because they are divorced.
My last point is that the example used by the Church in its written evidenceit did use the gay example in its oral evidence, which was appropriately honestwould also be unfair. If someone has a role not otherwise covered by paragraph (2)(8) of schedule 9, the fact that they get divorcedwhich might happen for all sorts of reasons, including domestic abuseshould not be a basis for losing their job unless they do a job where that is incompatible under paragraph (2)(8), which is itself an expression of the European directive to which we have signed up and essentially a treaty obligation to which we are committed, as well as being compliant with the European convention on human rights. It is only right that at some point we should meet the lobbying of Church and other religious organisations four-square, as I have sought to do. Not to do so would mean that they were wasting their time in urging us to address such points.

Tim Boswell: The hon. Gentleman is beginning to draw out a sensitive argument. Does he not agree that in cases where the Church authorities have legitimate concerns, as opposed to cases involving a blatant attempt simply to pay somebody off because of their orientation, given that there is an interaction between religion and belief and other rights, it would be much more appropriate to seek some kind of mediation or resolution of any dispute rather than simply reaching for the litigation revolver and pursuing the matter through the court? It is a prudential issue. It would be possible for the Church authorities, for example, to explain the nature of their concern and the likely pastoral impact of the situation that might arise: in other words, an implied justification under paragraph (2) of the schedule.

Evan Harris: We are all in favour of mediation, but in the end, minorities who are discriminated againstthere is no doubt that they are, and I know the hon. Gentlemans personal commitment to ensuring that we eliminate such discriminationmust have recourse to the law, and the law should be clear. If it says clearly that paragraph (3) of schedule 9 cannot be used to say to someone who is gay or having gay sex, You are not an orthodox member of X religion if you are sexually active according to your sexual orientation, it would be helpful. Then the organisations will know that they must be able to defend their actions under some other provision.

David Drew: I have been biting my tongue for some time now. Can the hon. Gentleman understand the problem that some of us will have with it? If someone is dismissed, for whatever reason, they might immediately come back to the organisation that employed them and allege religious discrimination. Is that not a real and ongoing problem? We need to be assured that that is not what lies behind his amendment. We might wish to have this debate later in consideration of the Bill, when it might be more appropriate. That is what is at the root of the problem: religious discrimination could be alleged, regardless of the original reason for the dismissal.

Evan Harris: I think that the hon. Gentleman means that one could allege sexual orientation discrimination regardless of the trigger for the dismissal. There is not a huge number of such cases, thank goodness. The Reaney case in the diocese of Chester went to an employment tribunal, which at first gave a ruling that did not satisfy either side as to the scope of the conditions in which sexual orientation can be used as a criteria. That is why, when we come to it, paragraph (2)(8) of schedule 9 is very useful, because it puts things clearly in a way that does not exist at the moment.
However, there are not that many cases. We want there not to be that many cases. It would be helpful if the law were clear that if someone has gay sex, it is a sexual orientation matter, not a religious matter. Regardless of what our views are, I hope that that need not divide the Committee on the grounds of individual religious belief. I shall deal with the second amendment in the group more briefly, but I hope that hon. Members will recognise that my contribution has been so long mainly because I have taken interventions.
Amendment 216 would, again, clarify the fact that the definition of religion or belief for the purposes of the Bill should not include support for matters of public policy or the policies of a political party. That is also restated in amendment 236, which was not selected because it was tabled after the deadline for selection. Amendment 216 makes the point that it is important that, for example, religious employersalthough it extends beyond employmentcannot say that someone will not fulfil a religious criterion if they are, for example, pro-choice. It is certainly the case that orthodox Catholic doctrine is not pro-choice; it is anti-abortion. However, that issue should not be the basis on which a religious criterion should be judged to be met, because it goes too far away from doctrine and theology towards matters of public policy. In a sense, we would be allowing a political testnot necessarily a party political testthat should not otherwise exist, to benefit from the wider exemption that exists for religion or belief. It may well be the case that employers requireas we do in Parliamenta political test, and that is lawful. However, that should not be dressed up as part of the definition of religion or belief.

Mark Harper: This is the second amendment in this group in relation to which the hon. Gentleman is attempting to define what is or is not a religious belief. The point that he just made goes to the heart of the issue. For religions that take a pro-life position and have a particular view of when life starts, such opinions are a fundamental part of their belief. Indeed, that is recognised as such in our present lawI think that he acknowledged this during the evidence sessionsgiven that we allow professionals involved in medical services not to be involved in delivering and procuring abortions if that is something that offends against their conscience. I think that he did not disagree with that, because he recognised it was the law. In relation to this part of the Bill, why is he again trying to define what religions are or are not allowed to believe?

Evan Harris: I am grateful to the hon. Gentleman for his useful intervention. One of the reasons why I am seeking to clarify the matter is that I believe that exemptions such as those that exist in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1990 should be statutory. They should be set out in statuteas, indeed, they areand in so far as that legislation goes, I support such measures. However, I am seeking to clarify the fact that I do not believe that such provisions should be applied generally. In other words, people should not be able to look to non-discrimination on the basis of religion and belief and seek protection from discrimination when they are, for example, a doctor who says that it is their religion or belief that unmarried women should not be prescribed the contraceptive pill. If their medical employer or the General Medical Council seeks to insist that they do what I would consider to be their job as a doctor and says that they should provide the appropriate clinical careincluding providing a prescription or a supply of contraception to women who are entitled to have it whether they are unmarried or notthey cannot rely on a claim of direct discrimination. It would be helpful to make that clear, which is why the hon. Gentleman has done us a service by making that point.
I am not saying that there should be no statutory exemptions on the grounds of strongly held religious belieffor example, in relation to doctors who do not want to play a part in providing abortion services. I am on the record as supporting the compromise that was fashioned in a room in the basement in 1967 by Lord Steel and others, and I do not seek to remove it. It is a separate statutory exemption, and I believe that it needs to be; we should not allow any creep of protection from religious discrimination to cover it.
The other area that I am concerned about is the increasing politicisation of religion in the form of religious parties, such as the Islamic party of Britain and the Christian Peoples Alliance. I strongly support their right to exist and to run as political parties. I am in favour of free expression and of religious organisations coming directly to the political table, as well as indirectly through the impressive lobbying work that they do as lobbying organisations. However, when bodies such as the Christian Peoples Alliance are seen as political parties, it is important that they do not think that they uniquely, as a political party, could cite protection against discrimination on the grounds of religion or belief to give them special privileges, in a way that the Conservative party, the Labour party, the Liberal Democrats or the Scottish nationalists could not. For example, if the Christian Peoples Alliance and other smaller parties were not invited to a hustingsalthough I believe that everyone is entitled to be invited, including the British National party if it has paid its deposit and is standingsuch a party could not claim religious discrimination on the basis of who the people signed up to it are.
My final point on this matter is intended to make it clear that the theological basis for believing that life begins at conception is okay. There is nothing wrong with that, or with the political expression of that in public policy. All the amendment says is that one cannot rely only, or at all, on the degree of support for matters of public policy or for the policies of a political party. Therefore, it is fine if someone happens to support the ProLife Alliance and also happens to demonstrate that they are of that religion, but it is the latter limb and not the former that is the important provision. Otherwise, one could have people who are not theologically of that religion but who subscribe to that policy platform to seek the protection of the anti-discrimination legislation that exists for matters of religion or belief but not for maters of political belief. It is therefore important that we recognise that the religion or belief that we are seeking to protect is a theological one and not a matter of public policy. On the basis of probing those two important areas, I commend the amendments to the Committee.

John Mason: As this is the first time that I have spoken on a matter of religion in this Committee and as I suspect that we will have a lot of discussion on religion in the sittings ahead of us, I want to make it clear that I speak personally and not as a spokesperson for my party.
Among the wider public there is a lot of concern about some of these issues, but I accept that those of us who are seriously involved in religion are probably a minority in society. I guess that the committed Christian population is around 5 per cent. I know that there are people in my party and I guess in other parties here who would question whether we should even be discussing some of these issues, as we try to tie together sexual orientation, sexual behaviour, religious belief and religious behaviour and practice. This can be a difficult area, but the Committee should have the opportunity to discuss the place of religion in our society.
Some people feel that religion is the poor relation of the protected characteristics, and there is some evidence that employers and others will tend to decide against religion if there is a clash of rights. If it is the considered opinion of the Committee and of Parliament as a whole that religion should come last, let us make that clear and accept it. However, the matter should be discussed. I accept that the wider Church has been very intolerant of minorities in the past, and perhaps the rest of society now feels that it is time for the Church to take a bit of a kicking for the next few years. If that is what society feels, it has some right to do it.
I might disagree with the hon. Member for Oxford, West and Abingdon on a few things, but I respect his consistency and the fact that we know where he is coming from. I hope that the Committee will not accept the two amendments, which are not necessary and would damage religious freedom. One purpose of the Bill is meant to be protection against anti-religious discrimination, not enshrining it. The explanatory statement accompanying amendment 215 says:
This is to make sure that organisations or individuals cannot use exemptions based on religion or belief to discriminate on another ground for example against persons whose lifestyle, because they are gay or unmarried, is not consistent with orthodox practice of that religion or belief.
That recognises that the orthodox teaching of most of the main world religionsChristianity, Islam and Judaism, although there are othersis that sexual activity outside marriage is morally wrong, yet the amendment seeks to dictate to adherents of those religions that they could not apply such teachings in their own affairs. It would tell them that they could not live those teachings out and ensure that certain manifestations of orthodox religious faith were illegal.
I used the words seeks to because, as we heard last week in the evidence session relating to schedule 9, there are large question marks over whether the Bill narrows the already fairly limited protections for employment in Churches. All such religious organisations want is to be able to insist on staff whose lifestyle does not contradict the teaching of their religion. It might be that the effect desired under amendment 215 is already achieved under the Bill, but we shall return to that another day.
The views on sexual ethics that amendment 215 targets are mainstream views that religious groups generally hold and have held. Along with views on many other ethical issues untouched by the Bill, those views are very dear to them. They have upheld such beliefs in their churches and places of worship, in their own internal affairs, with little complaint, and it is what they teach from the pulpits and what they try to practise in their own lives.
Whether we agree with those religious groups is not the real issue, and as parliamentarians surely we do not exist to legislate on the beliefs of adherents to any religion. It is hard to see why there should be opposition to the idea that religious groups should regard living in accordance with their teachings on sexual ethics as a necessary part of observance of their faith. There are two sets of employment protections for religious groupsthat has already been referred to. One set allows for discrimination based on religion or belief, while another allows discrimination on other grounds, such as sexual orientation. They are referred to under paragraphs 3 and 2 respectively of schedule 9.
Amendment 215 would impose further limits and protections, which already require religious groups to jump through hoops just to maintain their basic freedom of association. It would provide more opportunity for people hostile to the views of religious organisations to try to haul them before employment tribunals in an effort to make them change their beliefs. We have already seen that in cases brought against Christian organisations by the British Humanist Association and by Stonewall.
Churches and other religious organisationsand, I would suggest, non-religious organisationsshould have the right not to employ someone with views seriously at variance with their basic teaching. Surely we should leave such cases well alone and promote diversity and understanding, rather than a uniform greyness in our society.
It is my desire not that the Churches impose their will on everyone else, but that we, as minority groups, should be able to live with each other in society. Do we really want to make it easier for people to sue Churches?

Evan Harris: Does the hon. Gentleman recognise that it would be illegal, and rightly so, for a gay organisation or a gay bar to sack someone on the basis of their religious belief? Are not the amendment and the Bill, with which he disagrees, just asking for reciprocity and recognising that there are narrow exemptions that get religious organisations and employers out of that duty of reciprocity? Does he accept that religious people benefit from anti-discrimination legislation because they are protected from being dismissed on account of their religious views?

John Mason: I am totally committed to reciprocity, if that means that we treat each other equally and respect each others differences even when we disagree. I am not looking for special protection for religious groups. However, I suggest that a gay organisation should expect, when recruiting, that someone working for it should be committed to its ethos, as I would expect in the Churches. If someone is working for a gay organisation and changes their views to the extent of being opposed to that organisation, the long-term employment relationship would be extremely difficult.

Tim Boswell: Further to the intervention that the hon. Gentleman is dealing with, before the memory of it fades, would he not agree that one of the concerns for people with religious faith is that some of the protections already in place may not be as strong as previously thought, or may be faltering? I am thinking, for example, of persons of faith and their attitude to Sunday employment.

John Mason: A number of religious groupsI am not saying that it is all of themwould perceive that there is a move in society broadly against religion. Things that were assumed in the past, such as no ferries in the Western Isles on Sundays and such like, are being challenged or questioned, whereas in the past people accepted them without really thinking about the matter.

Evan Harris: I want to bring the hon. Gentleman back to his remarks on ethosI know he has his notes to hand. Is he saying that one can be correctly perceived as opposing the ethos of an organisation merely on the basis of ones sexual orientation?

John Mason: Earlier, the hon. Gentleman was saying that we cannot distinguish between sexual orientation and sexual practice. I am now wondering whether he is suggesting that we are separating the two. I must admit that I am somewhat confused by his position.

Evan Harris: I shall ask the question in two parts. Regardless of whether the hon. Gentleman believes that sexual orientation and the manifestation of that sexual orientation in a lawful way are one and the same, does he believe that simply by being of a certain sexual orientation one can be against an ethos of an organisation? Or does he believe that, by practising the manifestation of that sexual orientation within the law, one can be against the ethos of that organisation? Is that his contention?

John Mason: What I am trying to say is that a religious organisation might perceive its ethos and standards as tighter than, and being of a different level from, what is allowed in society generally. Going back to the example of a youth worker, which is specifically mentioned as an example on page 181 of the explanatory notes, someone who is working for a Church as a youth worker, effectively in a pastoral role with young people and teaching them that the only place that they should have sex is within a committed marriage, it is difficult to consider how that person could themselves believe the exact opposite, whether it be sex outside marriage with the opposite gender or with the same gender. I find it hard in that situation to split between sexual orientation and sexual practice.
Going back to my speech, these are religious matters that are internal to religious organisations. We should tread carefully before legislating on such sensitive issues. People who disagree with the beliefs of religious organisations have the freedom to seek employment elsewhere, but religious organisations have nowhere else to go to exercise their freedom of association if the law forces them to employ people who reject the tenets of their faith. I am happy to accept that it is more difficult once someone is in employment and changes their position. However, the large majority of cases that we are thinking about arise when recruiting staff. Strangely enough, although the explanatory statement mentions the unmarried, it is perfectly legal to dismiss a church youth worker who moves in with a partner of the opposite sex. Nothing in the Bill would change thatit would still be lawful. The hon. Member for Oxford, West and Abingdon explained a little more about what he meant by amendment 216. I have been left guessing as to what kind of organisation he was referring to.

Evan Harris: I am not sure that that is right. I would be grateful if the Minister clarified the situation in her remarks. I am not sure that a heterosexual, having lawful heterosexual sex, is not a manifestation of their sexual orientation. I agree that the issue is trickier, because they are not usually a discriminated-against group. I caution the hon. Gentleman against asserting so solidly that someone can be dismissed on the basis of a lawful relationship in their private life unless they are covered by the narrow provision that deals with those in a proselytising roleif I may describe paragraph 2(8) of schedule 9 in that wayespecially under the European convention on human rights.

John Mason: I stand to be corrected by those with greater legal knowledge, but as a general principle, many associations that have nothing to do with religion have sets of rules that it is possible to break while remaining within the law. An example is having to wear a tie in Committee. There is therefore a distinction.
We received clarification earlier on the kind of organisations at which amendment 216. For example, political parties with a religious bent should not receive special treatment. I am happy to agree with the hon. Member for Oxford, West and Abingdon on that point. I am probably less sympathetic to religious parties than him because I would rather see people of religion in all parties. However, the proposal could damage religious organisations whose beliefs overlap incidentally with certain public policy positions. For example, a requirement that an employee believes in good stewardship of the environment would be a natural outworking of the faith of many religious bodies. However, it appears that amendment 216 would allow somebody who rejects that belief to claim that they are being unlawfully discriminated against if they are turned down for a job. Similarly, religious groups that believe that marriage should be promoted in public policy could be sued, even though a belief in that view is an obvious requirement for them to make of a new employee.
Many religious bodies are also registered charities. They cannot advocate support for political parties, but the Charity Commission recognises their freedom to advocate positions that overlap with those of political parties. The commissions guidance document, CC9, Speaking out: Guidance on Campaigning and Political Activity by Charities, states under the heading, Support for policies:
It is acceptable for a charity to advocate support for a particular policy advocated by a political party or candidate, provided that the policy supports the charitys purposes. However a charity must not support a political party or candidate.
Clearly, if a charity advocates a policy and is recruiting a worker to promote it, the charity must be able to insist that he or she supports that policy. The fact that the charity is religious should not deprive it of that freedom.
If amendment 216 achieved its goal, it would create an obvious injustice, because we as political parties can impose requirements about supporting policy positions on our staff, yet religious groups would be deprived of that freedom. As it happens, some politics is not protected ground. Any employer, religious or not, could require support for a political party as a pre-condition of employment and nobody could sue them. I do not advocate that, but I simply point out that one cannot sue for political discriminationand rightly so, because that would create a minefield.
Finally, it is ironic that the hon. Member for Oxford, West and Abingdon tabled amendments 215 and 216, as well as amendment 217 in the next group. I do not intend to speak to it, but it is worth pointing out that although amendments 215 and 216 would impose new limits on the manifestation of religion, amendment 217 would widen the legal right to manifest sexual orientation. That would mean religion being further relegated within equality law and more narrowly defined than other strands. I hope that the Minister and the Committee will not give religious bodies further cause for concern about the impact of the new legislation and will oppose the two amendments.

Vera Baird: The intention behind amendment 215 is to ensure that organisations or individuals do not misuse the various exceptions available to religious organisations to discriminate against people unlawfully because aspects of their lifestyle, such as sexual orientation, are not in keeping with the tenets of the religion or belief in question. My note says that that fails entirely to understand the construction of the Bill, but I will not read it out.
The Bill identifies each of the nine characteristics that we are seeking to protect and gives precise definitions of what constitutes each of them. As such, it is clear what each characteristic is and what level of protection is afforded to it. Although I appreciate that a persons religious belief should not be used to justify unlawful discrimination, I consider that the Bill makes it entirely clear that that is not permitted.
Where discrimination takes place, the protected characteristic is the ground on which the discrimination takes place. Any protected characteristic that the perpetrator of the discrimination may possess is not relevant. For instance, the exception available to religious organisations in schedule 23 sets out exactly what such organisations can and cannot do in relation to other protected characteristics.
Where a person is discriminated against because of his or her sexual orientation, the reason for that discrimination is because of their sexual orientation, irrespective of the motive of the person actually causing the discrimination. It would not matter that a person claimed that they were acting in a particular way because of their religions beliefs. The discrimination would still be because of the characteristic of sexual orientation, so any exception that could be considered applicable because of religion or belief would not come into play.
I pause just to appreciate and acknowledge the concerns of the hon. Member for Glasgow, East, were the Government to accept the amendmentswhich they will not do. He knows that there are some religious exceptions. Indeed, Committee members have debated those a little bit this afternoon, even though we have yet to reach them because they are in schedule 9. However, we do not think that those exceptions have narrowed. We have no intentions of facilitating a kicking for religion in any way at all. The religious exceptions have been carried forward in the way that they were before. The hon. Gentleman made a number of significant points, but, with respect to him, I will not rehearse them in detail, because we will not accept the amendments. Therefore his worries can, I hope, be set aside.
On amendment 216, the same answer that I have given on the question of sexual orientation applies to public policy. Adhering to a particular aspect of public policy is not a protected strand, but if there were some way in which it was discriminatory to deal with somebody for holding a particular belief, somehow, within one of the protected characteristics, then the reasoning why it was done and the religious position that gave rise to that discrimination would not facilitate the actions of the person who, none the less, discriminated, because, as I have already said, the discrimination would be because of the characteristic protected. Despite there being a religious motivation, that does not save anyone from being guilty of discrimination.
The Bill makes it clearI am not sure whether the hon. Member for Oxford, West and Abingdon thought it did notthat a persons political beliefs are not captured by any of the provisions that apply to religion or belief. There is abundant case law showing that political beliefs are not covered by the current legislation, which the Bill mirrors, pretty well precisely, and that case law will still apply. The explanatory notes reiterate that point. I am sure that the hon. Gentleman has read those notes and seen that that is so.
It is pretty clear already that a persons political beliefs would not be captured in the way that amendment 216 seeks to prevent. I hope that I have dealt with the point regarding public policy and I have said all that the Government wish to say about amendment 215. I respectfully urge the hon. Gentleman to withdraw amendment 215. It has been a most interesting debate.

Evan Harris: I will withdraw the amendment. I am grateful that the Minister asked me respectfully and I am glad that we are back to civil exchanges. She made some valuable points about the motivation not being a factor. I will reflect on that. I think that we will be able to have shorter debates on other parts of the Bill, because we have rehearsed some of the arguments. I therefore beg to ask leave to withdraw the amendment.

Amendment by leave withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11 ordered to stand part of the Bill.

Clause 12

Sexual orientation

Evan Harris: I beg to move amendment 217, in clause 12, page 8, line 16, at end add
(3) Sexual orientation includes manifestations of that sexual orientation..

This is to put clearly into statute existing case law stemming from eg Amicus vs Secretary of State where it was held that a religious organisation could not avoid sexual orientation discrimination by referring to lifestyle matters which were a lawful and direct expression of sexual orientation..

Joe Benton: With this it will be convenient to discuss amendment 220, in clause 13, page 9, line 27, at end insert
(7A) If the protected characteristic is sexual orientation, A discriminates against B if A treats B less favourably than A treats or would treat others on the basis of a manifestation of Bs sexual orientation..

This is to make explicit in statute the case law (eg from Amicus vs Secretary of State) which holds that discrimination against gay people on account of their gay life style or camp appearance (for example) is direct discrimination.

Evan Harris: Before I am interrupted by the bell, I should say that the debate that we need to have on this matter will be much shorter than we would otherwise have had

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.